This was an appeal from the judgment of the Istanbul Regional Court of Appeal, 13th Chamber (30 May 2018, 2017/1027-2018/512) and the Istanbul 17th Commercial Court of First Instance (11 September 2017, 2016/131-2017/256).

The plaintiff claimed that the defendants were responsible for the transport of aluminium rims from Türkiye to Portugal, which were insured by the plaintiff.

The first defendant, a freight company, issued the freight invoice, and the second defendant, acting as the carrier and charterer of the vessel, the MSC Brianna, issued the bills of lading. It was found during the unloading at the recipient company's address that one of the three containers transported was damaged and deformed. The damage was believed to have occurred due to the container being dropped or forcefully set down at some point during transit, causing it to break from the impact.

The insured loss amounted to EUR 14,726.25, which was paid by the plaintiff to the insured. Following the defendants' objections, the recovery process initiated by the Istanbul 16th Execution Office, was halted. The plaintiff sought the cancellation of the objection, the continuation of the execution, and a ruling for an execution denial compensation of no less than 20%.

The first defendant, Panalpina World Transport Nakliyat Ltd, contended that the plaintiff lacked the active legal standing necessary for the case and asserted that the payment in question was for invoice purposes, not damages. According to the specific terms of the insurance policy and art 5 of the General Conditions of Commodity Transport Insurance, if damage results from packaging issues, it is not covered by insurance.

The first defendant further argued that the damage was caused by improper securing and packaging of the goods, leading to their displacement during transport. The transport was conducted under a Full Container Load (FCL) agreement, whereby the goods are loaded and stowed inside the container by the shipper and handed over to the carrier sealed and locked. The bill of lading included a 'Shippers Load, Stow, Count' entry, indicating that the carrier (second defendant) bore no responsibility.

The first defendant contended that it was unclear if the damage occurred during sea transport, and even if responsibility were acknowledged, its liability would be limited. Consequently, the defendant sought the dismissal of the case.

The second defendant, representing MSC through its agency MSC Gemi Acenteliği AŞ, stated that it acted merely as an agent of the company that was a party to the carriage contract and, therefore, the lawsuit could not be directed against them. Clause 10 of the bill of lading specified that the competent court for any disputes was in London. The second defendant argued that there was no fault attributable to it concerning the alleged damage to the goods transported, and it was unclear at which stage of the transportation the damage occurred.

The goods had been transported under the responsibility of the shipper from the shipper’s address to Aliağa Port and then by sea from Aliağa to Sines Port, where they were unloaded. There was no record indicating that the damage occurred during the sea transport or within the areas of responsibility of the second defendant's company.

The second defendant contended that the plaintiff bore the burden of proving that the damage was due to its fault. The nature and cause of the damage to the container's contents remained unclear, leading the second defendant to request the dismissal of the case.

The Court of First Instance determined that the presence of the 'Shippers Load, Stow, Count' entry in the bill of lading and the 'FCL/FCL' terms indicated that the container was fully loaded by the shipper and then delivered to the carrier sealed. Given these conditions, the carrier was not responsible for opening the sealed container to check the stowage and loading within.

Although the expert report suggested that the damage to the goods inside the container could have occurred due to the container being dropped from a certain height or subjected to a similar sudden and forceable impact, the expert evidence presented in Court, including documents and photographs, did not show any indentation from an external impact to the container. Instead, an outward bulging was observed, and the damage was identified as resulting from the pallets' stacking and securing within the container.

It was established that the loading and stowage inside the container were performed by the shipper and that these actions were not in accordance with standard market practices and customs. The three containers, loaded and sealed, with customs formalities completed, were then taken into the transportation process. Since it was a FCL transport, the loading, stowage, and securing activities inside the container were typically within the shipper's control. Therefore, given art 1182.1.e of the Commercial Code [based on art 4.2.i of the Hague Rules and the Hague-Visby Rules], which exempts carriers from liability for loss or damage arising from the acts or omissions of the shipper or owner of the goods, their representatives, or their employees, the Court dismissed the case.

The decision of the Court of First Instance was appealed by the plaintiff. The Istanbul Regional Court of Justice reviewed the entire case file and decided to reject the appeal on substantive grounds. This decision was further appealed to the Supreme Court of Appeal by the plaintiff.

Held: Appeal dismissed.

The Supreme Court of Appeal upheld the Regional Court of Justice’s decision, confirming the initial judgment from the Court of First Instance as correct. The plaintiff’s appeal was dismissed, and the case was sent back to the Regional Court for further processing.